NRS 445C.070 Mitigating
factors considered by court in determining criminal penalty for violation;
written agreement regarding environmental audit may be modified; authority of
regulatory agency not limited by mitigation of criminal penalty.

NRS 445C.080 Presumption
that regulated person is not liable for administrative or civil penalty for
violation; written agreement concerning environmental audit may be modified;
authority of regulatory agency not limited by presumption against liability.

NRS 445C.090 Rebuttal
of presumption that regulated person is not liable for administrative or civil
penalty for violation.

NRS 445C.010Definitions.As
used in this chapter, unless the context otherwise requires, the words and
terms defined in NRS 445C.020 to 445C.060, inclusive, have the meanings ascribed to
them in those sections.

NRS 445C.020“Environmental audit” defined.“Environmental
audit” means an examination of the materials or practices at a regulated
facility that is conducted by a regulated person or an agent of a regulated
person and that is specifically designed to:

1. Produce systematic, documented and
objective results;

2. Identify and prevent noncompliance with
any environmental requirement; and

2. The State Department of Conservation
and Natural Resources or the Division of Environmental Protection of that
Department;

3. A district board of health acting as a
solid waste management authority pursuant to NRS
444.440 to 444.620, inclusive; or

4. A district board of health, county
board of health or board of county commissioners administering a program for
the control of air pollution pursuant to paragraph (a) of subsection 1 of NRS 445B.500.

NRS 445C.070Mitigating factors considered by court in determining criminal
penalty for violation; written agreement regarding environmental audit may be
modified; authority of regulatory agency not limited by mitigation of criminal
penalty.

1. Except as otherwise provided in
subsection 3, a court that is determining the appropriate criminal penalty to
impose against a regulated person who is convicted for a violation of an
environmental requirement shall consider, in mitigation of the penalty,
whether:

(a) An environmental audit was conducted pursuant
to a written agreement with the appropriate regulatory agency and the agreement
prescribed the:

(1) Scope, methods and schedule for
conducting the audit;

(2) Manner in which a violation of an
environmental requirement must be reported to the regulatory agency, including,
but not limited to, the number of days after the discovery of a violation that
the regulated person must report the violation to the regulatory agency; and

(3) Period within which such a violation
must be corrected;

(b) The regulated person voluntarily disclosed
the results of the environmental audit to the appropriate regulatory agency in
accordance with the requirements of the written agreement;

(c) The regulatory agency discovered the
violation of the environmental requirement as a result of the voluntary
disclosure in the environmental audit and before:

(1) The occurrence of any inspection or
investigation of the regulated facility by a regulatory agency or other
governmental entity; or

(2) The commencement of an administrative
proceeding or a civil or criminal action against the regulated person for the
violation;

(d) The regulated person or regulated facility
has not been issued a citation for a violation of the environmental requirement
in the immediately preceding 3 years;

(e) The regulated person did not obtain an actual
economic benefit or advantage as a result of the violation; and

(f) The regulated person entered into an
enforceable agreement with the appropriate regulatory agency to:

(1) Comply, as soon as practicable after
the violation, with the environmental requirement;

(2) Remedy any damage or other harm caused
by the violation; and

(3) Take action to prevent a recurrence of
the violation.

2. A written agreement that prescribes the
scope, methods and schedule for conducting an environmental audit may be
reasonably modified if the regulated person and the regulatory agency
specifically agree to the modification.

3. If a federal statute or regulation
provides for the imposition of a specific penalty for a violation of an
environmental requirement, a voluntary disclosure that complies with the
provisions of subsection 1 is, to the extent permitted under that statute or
regulation, a mitigating factor to be considered by the court when determining
the penalty for the violation.

4. The mitigation of a criminal penalty
pursuant to subsection 1 does not limit the authority of a regulatory agency to
order a regulated person to comply with an environmental requirement whose
violation it discovered because the regulated person voluntarily disclosed the
results of an environmental audit.

NRS 445C.080Presumption that regulated person is not liable for
administrative or civil penalty for violation; written agreement concerning
environmental audit may be modified; authority of regulatory agency not limited
by presumption against liability.

1. Except as otherwise provided in NRS 445C.090, a regulated person is presumed not to
be liable for an administrative or civil penalty for a violation of an
environmental requirement if:

(a) The regulated person conducted an
environmental audit pursuant to a written agreement with the appropriate
regulatory agency and the agreement prescribed the:

(1) Scope, methods and schedule for
conducting the audit; and

(2) Manner in which a violation of an
environmental requirement must be reported to the regulatory agency, including,
but not limited to, the number of days after the discovery of a violation that
the regulated person must report the violation to the regulatory agency;

(b) The regulated person voluntarily disclosed the
results of the environmental audit to the appropriate regulatory agency in
accordance with the requirements of the written agreement;

(c) The regulated person or regulated facility
has not been issued a citation for a violation of the environmental requirement
in the immediately preceding 3 years;

(d) The regulated person entered into an
enforceable agreement with the appropriate regulatory agency to:

(1) Comply, as soon as practicable after
the violation, with the environmental requirement;

(2) Remedy any damage or other harm caused
by the violation; and

(3) Take action to prevent a recurrence of
the violation; and

(e) The environmental requirement that was
violated is not a requirement for which the regulated person or regulatory
facility was specifically required to comply pursuant to a judicial or
administrative order or consent agreement.

2. A written agreement that prescribes the
scope, methods and schedule for conducting an environmental audit may be
reasonably modified if the regulated person and the regulatory agency
specifically agree to the modification.

3. If a federal statute or regulation
provides for the imposition of a penalty for a violation of an environmental
requirement, the voluntary disclosure is, to the extent permitted under the
statute or regulation, a mitigating factor in determining the amount of the
penalty for the violation.

4. The presumption against administrative
or civil liability does not limit the authority of a regulatory agency to order
a regulated person to comply with an environmental requirement whose violation
it discovered because the regulated person voluntarily disclosed the results of
an environmental audit.

NRS 445C.090Rebuttal of presumption that regulated person is not liable for
administrative or civil penalty for violation.The
presumption against administrative or civil liability set forth in NRS 445C.080 is rebutted to the extent it is
established that:

1. The violation of an environmental
requirement was committed willfully or with gross negligence by the regulated
person;

2. The regulated person identified and
disclosed the violation of an environmental requirement in an environmental
audit after the commencement of:

(a) An independent inspection or investigation of
the regulated facility by a regulatory agency or other governmental entity;

(b) An administrative proceeding against the
regulated person for the violation; or

(c) A civil or criminal action against the
regulated person for the violation;

3. The violation resulted in serious
actual harm or presented an imminent or substantial danger to the public health
or the environment;

4. The environmental audit was conducted
for a fraudulent purpose;

5. The regulated person obtained a
significant economic benefit or advantage as a result of the violation; or

6. The regulated person conducted a
previous environmental audit that disclosed the violation and he or she
intentionally failed to report that violation to the appropriate regulatory
agency.

NRS 445C.100Administrative or civil proceedings for violation: Burdens of
proof.In an administrative or
civil proceeding for a violation of an environmental requirement:

1. A regulated person who claims to have
made a voluntary examination and disclosure pursuant to an audit agreement has
the burden of establishing prima facie that the disclosure met the requirements
of subsection 1 of NRS 445C.080.

2. A regulatory agency has the burden of
rebutting the presumption against liability by a preponderance of the evidence.

1. Except as otherwise provided in this
section, an environmental audit conducted pursuant to the provisions of this
chapter shall be deemed privileged and is not admissible in an administrative
proceeding or civil action against the regulated person who conducted the audit
or the regulated facility which is owned or operated by the regulated person.

2. The privilege provided by subsection 1
does not apply if:

(a) A regulatory agency requests the admission of
the results of an environmental audit at an administrative proceeding or civil
action commenced by the regulatory agency;

(b) The regulated person expressly waives the
privilege; or

(c) A court or administrative hearing officer
determines in camera that the presumption against administrative or civil
liability is rebutted pursuant to NRS 445C.090.

3. For the purposes of paragraph (b) of
subsection 2, a regulated person does not waive the privilege if he or she
voluntarily discloses, pursuant to NRS 445C.010 to
445C.120, inclusive, the results of an
environmental audit or a violation of an environmental requirement discovered
as a result of an environmental audit to a regulatory agency.

4. This section does not prohibit a person
or entity from:

(a) Obtaining information concerning a violation
of an environmental requirement from a source independent of an environmental
audit.

(b) Commencing an administrative proceeding or
civil or criminal action against a regulated person or a regulated facility
which is owned or operated by a regulated person based upon information that
was obtained from a source independent of an environmental audit.

(c) Intervening in a proceeding or action filed
against a regulated person or regulated facility if the intervention is
specifically authorized by statute or regulation.

NRS 445C.120Regulations; court or administrative hearing officer not to
consider failure to conduct environmental audit in determining liability for
violation.

1. A regulatory agency may adopt
regulations to carry out the provisions of NRS
445C.010 to 445C.120, inclusive.

2. The fact that a regulated person does
not conduct an environmental audit pursuant to the provisions of NRS 445C.010 to 445C.120,
inclusive, must not be considered by a court or administrative hearing officer
in determining whether to impose administrative, civil or criminal liability
for a violation of an environmental requirement by the regulated person.